In Re Guess
1990 N.C. LEXIS 575, 393 S.E.2d 833, 327 N.C. 46 (1990)
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Rule of Law:
A state medical board may discipline a physician for unprofessional conduct defined as any departure from the standards of acceptable and prevailing medical practice within that state, without a specific finding that the physician's conduct actually harmed or posed a risk of harm to a patient or the public.
Facts:
- Dr. George Albert Guess, a licensed family physician in Asheville, North Carolina, regularly administered homeopathic medical treatments to his patients.
- Homeopathy is a system of therapy distinct from the conventional, or allopathic, system of medicine prevailing in North Carolina.
- Evidence indicated that Dr. Guess was the only physician openly practicing homeopathy in North Carolina.
- At a hearing before the Board of Medical Examiners, several licensed physicians testified that homeopathy was not an acceptable and prevailing system of medical practice in the state.
- Dr. Guess presented evidence that homeopathy is a recognized practice in at least three other states and in many foreign countries.
- There was no evidence presented that Dr. Guess's homeopathic treatments had ever caused harm to a patient.
- There was anecdotal evidence that some of Dr. Guess's patients, who had not found relief through conventional medicine, had been helped by his homeopathic treatments.
Procedural Posture:
- The Board of Medical Examiners of the State of North Carolina charged Dr. Guess with unprofessional conduct.
- Following a hearing, the Board revoked Dr. Guess's medical license, but stayed the revocation on the condition that he cease practicing homeopathy.
- Dr. Guess appealed the Board's decision to the Superior Court of Wake County, a state trial court.
- The Superior Court reversed and vacated the Board's decision, finding it was not supported by substantial evidence and was arbitrary and capricious.
- The Board, as appellant, appealed the Superior Court's order to the North Carolina Court of Appeals, an intermediate appellate court.
- The Court of Appeals affirmed the Superior Court's reversal of the Board's decision, holding that discipline requires a finding that the physician's conduct was detrimental to the public, which was not found here.
- The Board petitioned the Supreme Court of North Carolina, the state's highest court, for discretionary review.
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Issue:
Does N.C.G.S. § 90-14(a)(6), which defines unprofessional conduct as any departure from the standards of acceptable and prevailing medical practice, require a showing of actual or potential harm to a patient or the public before a physician's license can be disciplined?
Opinions:
Majority - Mitchell, J.
No. The statute does not require a showing of actual or potential harm to a patient or the public before the Board of Medical Examiners may discipline a physician for departing from prevailing medical standards. The legislature, in exercising its police power to protect public health, may prohibit any medical practice that deviates from the state's accepted standards, as such deviation is considered to inherently pose a general risk to the public. The plain language of N.C.G.S. § 90-14(a)(6), which permits discipline 'irrespective of whether or not a patient is injured thereby,' confirms that no specific showing of harm is necessary. The Board's finding that homeopathy departs from the 'standards of acceptable and prevailing medical practice' in North Carolina was supported by competent expert testimony, and evidence of homeopathy's acceptance elsewhere is irrelevant to the standard of practice within the state. Therefore, the Board's decision to discipline Dr. Guess was a valid exercise of its statutory authority.
Dissenting - Frye, J.
Yes. A finding of potential harm to the public should be required before revoking a physician's license for unprofessional conduct. The purpose of N.C.G.S. § 90-14(a) is to protect the public from dangerous or substandard medical practices, and the common thread among all grounds for discipline is a threat of harm. The phrase 'irrespective of whether or not a patient is injured thereby' should be interpreted to mean that the Board can act before an injury occurs, not that it can punish a physician for a practice that poses no threat of injury at all. Dr. Guess was a dedicated physician using safe, regulated, and sometimes beneficial treatments, not a 'quack.' The majority's holding stifles medical progress by preventing physicians from using non-dangerous treatments that are accepted in other parts of the world but are not yet mainstream in North Carolina.
Analysis:
This decision grants significant deference to state medical boards in defining and enforcing professional standards of care. It establishes that a state can mandate conformity to a single, prevailing standard and penalize deviations, even for practices that are not proven harmful and may be accepted elsewhere. The ruling solidifies the power of a state-specific standard of care in disciplinary proceedings, potentially chilling medical innovation and making it difficult for practitioners of alternative or non-mainstream therapies to operate without risk of sanction.
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